Workplace Investigations

If you are undergoing a workplace investigation, you are probably concerned and wondering what your rights are. This is a complicated area of the law that can involve the application of both employment law and criminal law. While most workplace investigations will not result in criminal sanctions, some can. Clearly it is important to know the difference. Similarly, whether you have a right to have an attorney assist you depends on the type of investigation. You cannot rely on your employer to explain your rights to you.

If you are subject to a workplace investigation, you need an attorney with the right background who can advise and assist you through the process. At Spiggle Law, we have extensive experience fighting for workers’ rights and standing up against illegal employment practices. We will work diligently to keep you informed and ensure that you survive this workplace investigation.

What Happens

The Protections You Have

What to Do

FBI agents show up in your office and “just wants to talk.”

• You have the right against self-incrimination.• You have no workplace protection.

• You have no workplace protection.

Don’t talk, no matter what, even if they tell you that it is in your best interest. This is almost always a lie. Get a lawyer or say that you want to talk to the company’s lawyer. What if you could get fired? Better to get fired than risk criminal prosecution. In truth, your risk of getting fired is low. Most companies would probably prefer that you talk to a lawyer before deciding whether to cooperate.

OIG investigators show up and say they are conducting an investigation. They read a Garrity statement and ask you to sign it.

• You have the right against self-incrimination.

• You have Garrity job protection even if you refuse to answer.

Don’t talk, ever, unless they later offer immunity. Regardless, talk to a lawyer as soon as you can.

OIG investigators show up and say they are conducting an investigation. They read a Kalkines statement and ask you to sign it.

• You have the right to counsel.

• You will not be criminally liable (unless you lie).

• You have no workplace protection if you refuse to answer.

Tell them that you want to talk to a lawyer. Go talk to a lawyer. Explore whether you face any possible criminal liability. If you do, it’s probably best not to talk: it’s better to lose your job than go to jail. If, after consultation with your lawyer, you decide that you face no criminal liability, agree to talk, but only with your lawyer present.

HR representatives show up and tell you that they are investigating something and need to talk to you. You do not work for the government.

• You have virtually no protections.

• This is not law enforcement, so you have no Fifth Amendment protection.

• You don’t work for the government, so you have no rights under Garrity or Kalkines.

• If it’s just HR with no lawyer, 99 percent of the time the company is well within its rights to talk to you; in fact, the company can lawfully fire you for refusing to talk

Ask for some time. Most companies will not walk you out of the building immediately for refusing to talk. They’ll give you at least a day. Go talk to a lawyer see what risks might exist in talking and whether you have any rights (e.g., under contract or state law) to have legal representation. In some rare instances, it may be worth it to risk getting fired instead of talking. For instance, if telling the truth means admitting to a crime, don’t talk. It’s better to get fired. If you admit criminal liability to a private citizen, nothing would prevent that person from telling law enforcement, and there would be nothing illegal if law enforcement used that information to arrest you. If it’s not that dire—for instance, if the investigation is based on a complaint that you raised—agree to talk. If you have time, talk to a lawyer about any traps that may lie ahead. For instance, it is possible that an HR rep in such an “investigation” might be trying to establish—without telling you—that you were in danger of getting fired well before you raised a complaint. HR would do this to prepare a defense for the company—using your words—that any disciplinary action taken against you was unrelated to your complaint, which may be illegal retaliation. If you game this out with a lawyer beforehand, you might be able to avoid these traps. Ask whether you can bring your lawyer or a friend. Ideally, you will have someone in the room on your side who can back up your version of events if it turns into a he-said/she-said situation. If the company’s lawyer is in the meeting and you have your own lawyer who is not with you, raise this fact and ask that you be allowed to bring your counsel. When you go to the meeting, whether with someone or alone, keep your wits about you. Make sure you understand everything being asked of you. Though you don’t want to hide the ball, particularly if you want the company to know about wrongdoing, generally, the less you say, the better. You can always follow up in writing later if you miss something.

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Before you take any hard copy or electronic materials from your workplace, review your employee handbook and consider consulting a lawyer.

Be aware that any mobile device or computing account that you use to discuss work-related matters may be subject to discovery by your employer.

Frequently Asked Questions

What rights do I have in an investigation?

The answer to this question depends on whether your employer is a private employer or a public (government) employer and whether you are a member of a union. If you are a union member, you will have additional rights provided by contract, most likely including the right to have a representative attend a meeting between you and management. If you aren’t, and you work for a private company, you probably have fewer rights unless the company has a policy or employee handbook that provides otherwise. In most cases, you will have to participate in the investigation or risk losing your job, even if you were the one who complained about something that initiated the investigation. Government employees have additional rights under the law: for example, they have the right to keep their job and the right to refuse answering incriminating questions pertaining to a crime (but not pertaining to a violation of a work policy, for example).

Should I take documents from my workplace to substantiate my claims?

Probably not. If you do not have the right to access the document and retrieve the document from your employer’s computer systems, you are probably in violation of your employer’s policies and can be subject to termination. The same is true if you print and bring home documents, especially if you are subject to a nondisclosure or confidentiality agreement. If you have already taken documents from your workplace, notify your counsel immediately. An alternative approach is to keep a list of the documents that are pertinent to your claim, including their name, author, date, and a description. You can give that list to your lawyer, who can request these documents from your employer during discovery.

If I file a lawsuit, will my employer be entitled to review my personal e-mail accounts, social media accounts, and personal computer?

Most likely, yes, if you used your computer or these accounts to send messages or store information relevant to the claims in the lawsuit. If you delete these files to prevent your employer from seeing them, you could be subject to severe penalties in court, and your employer may even hire a computer forensics expert to recover the information you deleted.

Can my employer search my personal belongings?

The answer to this question depends on whether your employer has told you that you do not have a reasonable expectation of privacy in the workplace or in your personal belongings. If your employer has given you no such notice, you should have a legitimate expectation of privacy in your handbag, briefcase, locker, desk, or car. Many employers have these policies, so be sure to double-check your employee handbook.